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Bloggingheads
06-05-2008, 11:52 AM

Thus Spoke Elvis
06-05-2008, 01:05 PM
I thought this diavlog was interesting and informative (though Dahlia's incessant asides about torture became a bit tiresome), and I think Wittes was very cogent and even-handed, but I'd be interested in hearing someone from the right discuss and debate these issues with a reliable lefty like Dahlia.

Nothing against either diavlogger (Wittes, especially was good), but how many times are we going to have diavlogs on wartime legal issues where the participants approach these issues from the left or center-left?

bjkeefe
06-05-2008, 03:12 PM
Elvis:

Yours is a legitimate complaint/request. On the other hand, I find it very helpful to hear issues this complex discussed free from the usual point/counterpoint pairing. In a way, what you see in this diavlog is a process that refines the argument for "one side" of the question.

Or maybe I think it's that yours is a legitimate-sounding request. Maybe it's because I'm such a lefty, especially on this whole question of how we deal with suspected terrorists, but it seems to me that the "other side" is represented implicitly in a diavlog like this -- it is the position that the Bush Administration has not only held but has acted upon for the past six years. Some elements of that position are: okay to torture (or at least creep close to the line of torture), okay to detain people for indefinite lengths of time, okay to keep those in prison away from lawyers and the media, okay to define a third class of prisoner ("illegal combatant") to add to our existing two (POWs and common criminals), and so on.

(Note that by "okay" I mean something like "morally dubious but ultimately necessary for security" or something like that.)

So I guess what I'm asking is, how much could someone from the "other side" bring to a discussion like this that wouldn't be pretty much just putting a positive spin what has already been done and what continues to happen?

I don't mean to sound facetious when I ask this. I sincerely believe that the "right's" point of view has already been presented in as much detail as anyone could want, and meanwhile, the "left's" point of view has lacked coherence and lagged in development. We on the "left" have had to settle the dispute between the instinctive reaction to surrender to a tough-talking administration that promises to keep us safe, and an instinctive reaction to insist without compromise that these detainees are exactly like other kinds of prisoners.

I know it's unfair to ask you to play the role of an expert spokesperson for the "right." Your entire comment, after all, asks for different diavloggers to present that point of view. That said, can you think of anything -- however vague or generalized -- that should be presented/discussed/debated that augments the case that I claim has already been made at length?

Thus Spoke Elvis
06-05-2008, 04:31 PM
Brendan:

I agree with you that diavlogs on complex issues are sometimes made better when the participants largely agree. And as I wrote earlier, I think this diavlog was pretty good, with Wittes especially doing an excellent job at prodding Dahlia about changes she'd make regarding U.S. policy towards POWs.

My problem is that only one side of this debate is being represented for the most part on bloggingheads. So while we have a good understanding of the issues that left-leaning lawyers have with the Bush Administration's policy, we haven't had the chance to hear right-leaning lawyers defend the policy on bloggingheads. And make no mistake, there are stronger arguments to be made than "it may illegal, but it's necessary to protect America." If the Bush Administation's policies are so obviously illegal, why is it that so few have been struck down by the courts? And why weren't [similar (http://en.wikipedia.org/wiki/Johnson_v._Eisentrager) policies struck down when they were used in previous conflicts by the United States?

The administration's policy was crafted by lawyers in the Justice Department. Their positions may certainly be debatable, but people like John Yoo (http://en.wikipedia.org/wiki/John_Yoo) and Jack Goldsmith (http://en.wikipedia.org/wiki/Jack_Goldsmith) clearly aren't dummies, and my impression from listening to these people being interviewed is that their positions are often unfairly caricatured. I've heard conservative lawyers like Yoo (http://www.npr.org/templates/story/story.php?storyId=6190108) and David Rivkin (http://www.npr.org/templates/story/story.php?storyId=15121696) on NPR offering a legal defense of the Administration's policy, and to me many of their arguments at least seem defensible. I'd love to see someone like Yoo debate a blogginghead regular like Dahlia, Rosa Brooks, or Jack Balkin and see how each side's arguments hold up.

TwinSwords
06-05-2008, 05:56 PM
Dahlia Lithwick?

Gosh, are we lucky. BhTV gets all the cool people. I just wish (a) BhTV would post 12 episodes a day, and (b) I had more time to watch them all!

Wouldn't it be great if BhTV turned into an actual television channel? It would contain more intelligent content than the entire rest of the broadcast spectrum combined.

Thank you, Bob Wright! (Can we get this man a statue?)

bjkeefe
06-05-2008, 06:19 PM
Elvis:

Nothing for me to disagree with there, especially in light of what I've already said. I'm down with the idea of augmenting this diavlog with another in which the participants are more widely separated in point of view.

Well, maybe a little disagreement ...

I will say up front that I don't agree with your take on guys like John Yoo. To my mind, the briefs that he wrote while working for Bush were entirely the sort of thing generated by a lawyer you'd hire as a pure advocate, as in a civil lawsuit. That is, rather than Yoo answering the question, "Where do we, as the government of the country stand on these ideas, under the Constitution?" he answered the question, "Here's what we want to do. Can you give us legal cover?" Maybe I'm naive about this, but it seems to me that Justice Department officials have a higher loyalty -- to the Constitution and our founding and guiding principles, than they do to the President.

As to why so few of the Bush Administration policies have been struck down by the courts, I would say the first part is that the Federal courts are stacked with Republicans, thanks to the predominance of Republican presidents over the past quarter-century. I would say the second part is due to the judges displaying the same spineless subservience that was shown by Congress -- you wave the "America is under threat" flag in politicians' faces, and they crumble all too easily. And I do include appointees to the Federal bench in the category of politicians -- almost all of them are thinking about their next career move as much as any elected official.

Finally, as to your reference to past legal decisions, I don't know enough to comment specifically. I do want to make one general observation, though, which is this: Time and again, we've seen our government, particularly the executive branch, institute policies that they argued were necessary and proper, in the name of national security. Time and again, only a few years have to go by before many, if not most, of us realize how wrong those actions were. I am thinking, for example, of Lincoln's suspension of habeas corpus, Wilson's Espionage and Sedition Acts, FDR's approval of internment camps for Japanese- and Italian-Americans, all of the loyalty oath and blackballing nonsense to do with the "Red Scare" during the Cold War, and so on.

All that said, I still support your wish for someone to make a case different from the one that Dahlia and Benjamin were hammering out. I'd be interested to see if that someone could make me budge at all, if nothing else.

Swift
06-06-2008, 05:45 AM
Shorter Dahlia Lithwick: I'm excruciatingly fair to America's enemies. To America, not so much. In person I'm even daffier than in print -- that's why I jerk my hair around and ring bells in order to make my point. My parents actually wanted to name me Daffodil instead of Dahlia.

sharkdog
06-07-2008, 01:17 AM
Shorter Dahlia Lithwick: I'm excruciatingly fair to America's enemies. To America, not so much. In person I'm even daffier than in print -- that's why I jerk my hair around and ring bells in order to make my point. My parents actually wanted to name me Daffodil instead of Dahlia.

Swift I couldn't agree more. There is a place for rule of law and making sure even obviously guilty people have an advocate. However, people who enthusiastically run to do a win at all costs level of defense for our enemies are just goofy.

AemJeff
06-07-2008, 01:52 AM
Swift I couldn't agree more. There is a place for rule of law and making sure even obviously guilty people have an advocate. However, people who enthusiastically run to do a win at all costs level of defense for our enemies are just goofy.

What would you suggest? Just kinda have show trials, and shove all 'em enemies into a hole (or stick their necks through nooses) after we declare them guilty of "enemy-ness?" Do you think that the people picking up foreign nationals and sticking them into cells after beating them the crap out of them (or letting the Syrians or some other savory bunch do it for us) are all-knowing boyscouts who would never make a mistake or pick up the wrong guy on a tip because they know protecting America is Serious Business?

Either you have rule of law or you don't. Either you apply it to everybody or the list of exceptions just keeps getting longer. Just because somebody is thrown into a hole doesn't make them guilty. The point of process is for there to be some rational basis for determining what we're going to believe the truth is. If you're going to assume you know what's true before making that determination what's the basis for that judgment?

Do you think criminal lawyers representing people accused of felonies ought to just sort of go through the motions before throwing the guilty bastard in jail? Or do you believe that foreign nationals are fair game? Maybe you think everybody who's been picked up is a Khalid Sheik Mohammed. Why would you trust a process with as little transparency as that by which these guys have been picked up? Even Charles Manson deserved a fair hearing, even KSM.

Goofy? It's the basis of freedom.

Jelperman
06-09-2008, 04:30 PM
Shorter Swift and sharkdog:

I want to torture and murder brown people because it's fun!

Jelperman
06-09-2008, 04:45 PM
The decision to torture prisoners has now led the nation to government-sanctioned lynchings that would make any Ku Kluxer proud. Why? Because now that the Crawford Caligula has had so many people tortured, they might seek revenge if they ever leave the kennels at Guantanamo! But the lynchings might also lead to the victim's family and friends looking for payback, so next we'll have people "disappeared" like the Argentine and Chilean juntas did -if we haven't already.

What's really going on (aside from giving a perverted thrill to sadists) is an attempt to cover up war crimes.

Just as liars have to pile one lie on top of another, war criminals have to pile one atrocity on top of another: torture -->lynchings -->bodies secretly dumped in the sea.

Swift
06-10-2008, 06:48 PM
I think John Walker Lindh will confirm that we relish torturing white people from Marin County every bit as much as the brown ones . . .

My point, Jelperman, was that these cases raise genuine legal puzzles that serious people debate. I know that's hard to see now through the lens of Bush hatred, but it will be easy to see the moment the Obama Administration nabs and holds a high-profile terrorist. Doubt that? Have a look at Al Gore on extraordinary rendition in Richard Clarke's book, or google "riddle me this, Bush-bashers" and read the excellent piece in the LA Times.

Reading Ms. Dahlia in Slate leaves the impression she's fundamentally unserious. Seeing her schtick in person confirms it.

bjkeefe
06-10-2008, 07:48 PM
... or google "riddle me this, Bush-bashers" and read the excellent piece in the LA Times.

Googling your recommended phrase, with quotes, returns one link (http://mediamatters.org/items/200708240009), which probably hurts your argument a little bit.

Reading Ms. Dahlia in Slate leaves the impression she's fundamentally unserious. Seeing her schtick in person confirms it.

I don't think it's an unserious position to be absolutely against legalizing torture or warrantless wiretapping. I hold it myself, and I'm not kidding around.

Swift
06-10-2008, 11:05 PM
[QUOTE=bjkeefe;80127]Googling your recommended phrase, with quotes, returns one link (http://mediamatters.org/items/200708240009), which probably hurts your argument a little bit.

Sorry, bj, I should have provided the link: http://www.latimes.com/news/opinion/la-oew-mcgough23aug23,0,4734827.story

bjkeefe
06-10-2008, 11:11 PM
Thanks, Swift.